Sayles v Adams - [2014] NZHC 1915

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-770 [2014] NZHC 1915

IN THE MATTER OF
of an appeal from the Weathertight Homes

Tribunal

BETWEEN

COLIN LOUIS SAYLES Plaintiff

AND

PETER JAMES ADAMS and SUSAN MARGARET ADAMS

Respondents

Hearing: 18 June 2014

Appearances:

Mr P Finnigan for the appellant
Mr J Wood for the respondents

Judgment:

14 August 2014

JUDGMENT OF THOMAS J

This judgment was delivered by me on 14 August 2014 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Solicitors:

Romaniuk & Associates Law Offices, Auckland. Rainey Law, Auckland.

SAYLES v ADAMS and ADAMS [2014] NZHC 1915 [14 August 2014]

[1] The appellant, Mr Sayles, has appealed against the final determination of the Weathertight Homes Tribunal dated 13 March 2014 upon the grounds that the decision is erroneous in fact and law. The Tribunal held that Mr Sayles was liable in negligence for breaching a duty of care owed to the respondents, Mr and Mrs Adams.

Background

[2] The respondents bought a house on Waiheke Island in 1993. Extensive alterations were carried out between 1995 and 1996. The alterations were not weathertight.

[3] The alterations had been designed by an architect, Ron Stevenson. Gemini Construction Ltd (Gemini), a Signature Homes franchise, was engaged as the head contractor to carry out the alterations (the works). Gemini has now been liquidated and struck off the Companies Register. Terry Easthope was the sole director of Gemini. Mr Easthope has taken no steps in the proceedings and has previously been found liable for the Adams’ loss. He is now bankrupt.

[4] The Adams sued, amongst others, Mr Sayles for the part he allegedly played in causing the loss. They claimed that Mr Sayles was the project manager for the work and responsible for it.

[5] The parties agree that the two possible versions of Mr Sayles’ involvement

before the Tribunal were follows:

1.Mr Sayles was the person at the heart of the operation, the employee of the head contractor who oversaw the work done, participated in the performing some of that work and was the on site co-ordinator. In short he was the project manager;

2.Mr Sayles was a mere labourer with some narrow expertise in masonry that he had picked up over the years. His authority over the site was limited to being a postman, directing the bits of information

that were received to the right people and, when Mr Easthope was not present, being the spokesperson for Gemini.

[6] At the appeal, the appellant’s case appeared to have shifted somewhat. Mr Finnigan’s submissions were on the basis that, even if Mr Adams performed a role as the co-ordinator, he did not assume the responsibilities of project manager.

[7] The adjudicator heard evidence from Mr Adams, Mr Sayles and Mr Ramsey. Mr Ramsey was the plasterer involved in the works. The Tribunal preferred Mr Adams’ version of evidence deciding that Mr Sayles was the project manager and in charge of the overall quality…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sayles v Adams

Details

AGLC: Sayles v Adams [2014] NZHC 1915
Case: [2014] NZHC 1915
Decision Date: 14 August 2014

CaseChat Overview and Summary

The appeal was brought by Mr Sayles against a decision of the Weathertight Homes Tribunal which found that he was liable in negligence for breaching a duty of care owed to the respondents, Mr and Mrs Adams. The Tribunal had found that Mr Sayles had acted as the project manager for the construction of a house on Waiheke Island and that he had failed to ensure that the works were carried out with reasonable skill and care. The appeal was dismissed by the High Court. The Court found that the Tribunal’s decision was supported by the evidence and that the appellant had failed to discharge the onus of showing that the Tribunal was wrong in its findings. The Court found that Mr Sayles had assumed a degree of responsibility for the overall quality of the works and that he had been responsible for ensuring that the building work was performed with reasonable skill and care. The evidence supported the finding that Mr Sayles had been the project manager and that he had controlled the work carried out by Gemini. The appeal was dismissed and costs were to follow the event on a 2B basis.

Orders